MACA No. 870 of 2009

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MRS. JUSTICE MARY JOSEPH` ``` THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ## `MACA NO. 870 OF 2009` ``` AGAINST THE AWARD DATED 11.11.2008 IN OP(MV)NO. 1299/2005 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, OTTAPALAM ``` ## `APPELLANT/PETITIONER:` ``` 1SREEDHARAN (DIED), S/O.CHAMUNNI, AGED 46 YEARS, CHETTIKALAM HOUSE, PARA, ELAPPULLY PANCHAYATH, ERATTAKULAM POST, PALAKKAD DISTRICT. *ADDL. APPELLANTS 2 TO 4 ARE IMPLEADED. 2AMMUKUTTY, W/O LATE SREEDHARAN, AGED 59 YEARS, CHETTIKALAM, ERATTAKULAM POST, ELAPPULLY II VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT, KERALA STATE- 678622 3AJITHA, D/O. LATE SREEDHARAN , AGED 36 YEARS, CHETTIKALAM, ERATTAKULAM POST, ELAPPULLY II VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT, KERALA, NOW RESIDING AT CHUNNAMBUKKALTHODE, VELAMTHAVALAM PO, OZHALAPATHY, PALAKKAD, KERALA- 678 557. 4SAJITHA, D/O.LATE SREEDHARAN, AGED 34 YEARS, CHETTIKALAM, ERATTAKULAM POST, ELAPPULLY II VILLAGE, PALAKKAD TALUK , PALAKKAD DISTRICT, KERLA 678622. THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 21.07.2022 IN IA NO.1/2022 IN MACA 870/2009. BY ADVS.SRI.O.P.NANDAKUMAR SRI.V.A.AJAIKUMAR ``` ## `RESPONDENTS/RESPONDENTS 1 TO 3:` ``` 1RADHAKRISHNAN, S/O MUTHU, AGE NOT KNOWN, 8/486, THARAVATHUPADI, PIRAYIRI, PALAKKAD DISTRICT. 2RAMADAS, S/O.MANI, AGE NOT KNOWN, THIRUNELLAPALAYAM, PALAKKAD DISTRICT. 3THE NEW INDIA ASSURANCE COMPANY LIMITED, PALAKKAD. R1 BY ADV.SRI.RAJESH SIVARAMANKUTTY R3 BY SRI.A.C.DEVY, STANDING COUNSEL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2023, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.870 of 2009 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 2[nd] day of March, 2023`** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Ottapalam (for short ‘the Tribunal’) on 11.11.2008 in O.P.(MV) No.1299/2005. The appellant is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. Petitioner got injured in a motor accident occurred on 09.08.2005 when the goods autorickshaw in which he was travelling from Palakkad to Ottapalam alongwith vegetables, overturned. He was a vegetable merchant. In the impact of the motor accident, the petitioner had sustained serious injuries and was treated at Valluvanad Hospital at Ottapalam. Alleging that the motor accident was occurred due to the rash and negligent driving of the goods autorickshaw by it’s driver and ``` M.A.C.A.No.870 of 2009 ``` ``` 3 ``` raising a claim for a sum of Rs.2,00,000/- as compensation, the Original Petition on hand was filed before the Tribunal. 4. The owner, the driver and the insurer of the goods autorickshaw were arrayed as respondents 1 to 3 in the Original Petition. All the respondents were served with notice from the Tribunal, but respondents 1 and 2 did not turn up to contest the Original Petition and were declared as _ex parte_ . The 3[rd] respondent filed written statement admitting issuance of a policy for the goods autorickshaw involved in the motor accident as on date of accident. It was contented that the 2[nd] respondent was not holding a valid and effective driving licence to drive the goods autorickshaw at the relevant time of the motor accident, that the insured by entrusting the vehicle to a person who is not authorised to drive the same, violated the policy conditions and therefore, is not liable to indemnify the insured, that the petitioner was travelling in the goods vehicle as a gratuitous passenger and that the policy issued for it did not cover the risk of a gratuitous passenger and therefore the respondent is not liable to indemnify the insured. The compensation claimed is disputed for it’s exorbitant nature. ``` M.A.C.A.No.870 of 2009 ``` ``` 4 ``` The claims of age, the occupation and the monthly income as pleaded in the Original Petition were also disputed for the reason that those are not true to facts. 5. Before the Tribunal, evidence was let in by both sides. Petitioner himself deposed as PW1 and Exts.A1 to A12 and Ext.X1 were marked. On the side of the respondents Exts.B1 and B2 were also marked. The Tribunal found on the basis of the above evidence that the motor accident was occurred due to the rash and negligent driving of the goods autorickshaw by the 2[nd] respondent. Tribunal also found that the petitioner for the injuries sustained in the motor accident, is entitled to get compensation from the respondents. `35,550/- was arrived at as the compensation payable and the 3[rd] respondent was directed to deposit the same with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation alongwith cost of `1,000/-, within one month from the date of the award. The Tribunal permitted the 3[rd] respondent to get recovery of the compensation alongwith interest deposited by it in favour of the petitioner from respondents 1 and 2 who are the registered ``` M.A.C.A.No.870 of 2009 ``` ``` 5 ``` owner and the driver of the offending vehicle. The award is challenged mainly for the inadequacy of compensation. 6. It is contended by Sri.O.P.Nandakumar, the learned counsel that the petitioner was a vegetable merchant earning `6,000/- monthly. He had pleaded so in the Original Petition, but the Tribunal fixed only `2,000/- as his monthly income notionally and thereby he is aggrieved. The learned counsel contended further that the total compensation awarded by the Tribunal is disproportionate to the injuries sustained by the petitioner in the motor accident which includes Bi-malleolar fracture of right leg, fracture of calcaneum of left leg, fracture Navicular borne of left leg and fracture head of 3[rd] metatarsal left. He had undergone procedures like Tension Band wiring for correction of medial malleolus and plaster immobilisation for fracture of calcaneum of left leg. Medication was also administered. According to him though the above aspects were established by the petitioner through evidence, the Tribunal took only a period of three months while awarding compensation for loss of earning. According to the learned counsel, the Tribunal is unjustified in awarding only a lumpsum ``` M.A.C.A.No.870 of 2009 ``` ``` 6 ``` amount of `2,000/- as compensation towards transportation expenses, extra nourishment and damages to clothing. According to him as compensation towards bystander expenses, `1,500/- stands awarded being disproportionate to the period of hospitalisation, interference of this Court is warranted. 7. The learned counsel further pointed out that the Tribunal went wrong in awarding only a lumpsum amount of `10,000/- as compensation towards pain and sufferings and loss of amenities and discomforts caused to the petitioner due to the injuries sustained in the motor accident. According to him the said fixation being unjust and unreasonable interference is warranted. According to him, the permanent disability of the petitioner was certified in Ext.A9 as 7% by an Orthopaedic Surgeon associated with Valluvanad Hospital, Ottapalam but, the Tribunal took only 2% and calculated compensation on it’s basis. According to him, the compensation fixed being on the lower side, interference by this Court is required in the matter. 8. The learned counsel for the 3[rd] respondent has contended on the contrary that the occupation and the monthly ``` M.A.C.A.No.870 of 2009 ``` ``` 7 ``` income were not proved by the petitioner and the Tribunal cannot be found fault with for fixing `2,000/- as the monthly income on a notional basis. According to him the monthly income fixed by the Tribunal needs to be maintained. The learned counsel also canvassed for substitution of ‘14’ in the place of ‘15’ wrongly adopted by the Tribunal. 9. According to the learned counsel, Ext.A9 was issued not by the Medical Board but by an individual Orthopaedic surgeon. He was also not examined before the Tribunal and thus it was constrained to consider only 2% for assessment of compensation for disability. According to him the Tribunal is unjustified in doing so. 10. The rival arguments advanced by both counsel were scrutinised in the back drop of the documentary evidence on record. It is found from the Accident Register-cum-wound certificate and the discharge summary issued from Valluvanad Hospital, Ottapalam marked in evidence respectively as Exts.A7 and A8 that the petitioner had sustained Bi-malleolar fracture of right leg, fracture of calcaneum and navicular borne of left leg, and also fracture of head of 3[rd] metatarsal. It also stands ``` M.A.C.A.No.870 of 2009 ``` ``` 8 ``` proved that Tension Band wiring and plaster of paris were applied. 7% disability was assessed by an individual Orthopaedic surgeon. 11. The oral evidence of the petitioner that the injuries were sustained by him while travelling in a goods autorickshaw alongwith the vegetables loaded from the market, stands uncontroverted and therefore, the monthly income is re-fixed as `5,000/-. On account of the serious injuries sustained, a period of seven months is considered for calculation of compensation for loss of earning and thus `35,000/- (`5,000/x7) is arrived at. `6,000/- stands awarded by the Tribunal when deducted therefrom, the petitioner will get `29,000/- as additional compensation. As rightly pointed out by the learned counsel for the petitioner a lumpsum of `2,000/- was awarded by the Tribunal as compensation towards transportation expenses, extra nourishment and damages to clothing. The Tribunal ought to have awarded compensation separately under the above three different heads. Therefore, `1,500/-, `2,000/and `1,000/- respectively were awarded as compensation towards transportation expenses, extra nourishment and ``` M.A.C.A.No.870 of 2009 ``` ``` 9 ``` damages to clothing and thus, `4,500/- is arrived at. `2,000/stands awarded as a consolidated sum when deducted therefrom, the petitioner will get `2,500/- as additional compensation. As compensation towards bystander expenses, `1,500/- stands awarded being inadequate, this Court awards `2,500/- more. As compensation towards pain and suffering and loss of amenities and inconveniences, a consolidated sum `10,000/- was awarded by the Tribunal and it being inadequate and disproportionate, this Court awards `30,000/- and `20,000/- respectively under the above heads. Thus a total sum of `50,000/- is payable and `10,000/- stands already awarded when deducted, the petitioner will get `40,000/- as additional compensation. As already stated, Ext.A9 was issued by an Orthopedic Surgeon associated with Valluvanad hospital, Ottappalam and the permanent partial disability of the petitioner was assessed as 7%. The doctor who issued Ext.A9 was not examined. But the reasons for arriving at 7% permanent disability being narrated in Ext.A9, this Court considers 6%. ‘14’ being the correct multiplier in view of **Sarla** **Verma v. Delhi Transport Corporation [2010 (2) KLT 802** ``` M.A.C.A.No.870 of 2009 ``` ``` 10 ``` **(SC)]** is also adopted. `50,400/- is found payable as compensation in the calculation with the modified factors. `7,200/- stands awarded by the Tribunal when deducted, the petitioner will get `43,200/- as additional compensation. 12. In the above manner of re-assessment, the petitioner will get `1,17,200/- (`29,000/-+ `2,500/-Rs.40,000/+`.2500/-+`43,200/-) (Rupees One Lakh Seventeen Thousand and Two Hundred only) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent, shall deposit the above sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation and also the sum stands originally awarded by the Tribunal with interest fixed as per the impugned award (if not already paid) within two months from the date on which a certified copy of this judgment is received in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. 13. The Tribunal has permitted the 3[rd] respondent to recover the compensation amount with interest after it being ``` M.A.C.A.No.870 of 2009 ``` ``` 11 ``` deposited in favour of the petitioner, for the factum established by evidence that the respondent who was driving the offending vehicle has driven it at the relevant time without any authorisation. The Tribunal has permitted the 3[rd] respondent to get the compensation after being deposited, recovered from the 1[st] and 2[nd] respondents who are the registered owner and the driver of the offending vehicle. In the absence of any challenge, this Court maintains the same. Accordingly the 3[rd] respondent is directed to get the compensation amount with interest, after depositing the same in favour of the petitioner, recovered from respondents 1 and 2. 14. There was a delay of 40 days in filing the appeal. But it is found from an order passed by this Court on 12.11.2021 in C.M.Appln. No.1/2009 that the 3[rd] respondent stands exonerated from paying interest for the compensation amount for that period. Therefore, the 3[rd] respondent is exempted from paying interest for the period of delay. The Original Petitioner who is the appellant before this Court passed away during pendency of the appeal and his legal representatives who are none other than his wife and two ``` 12 ``` ## **`M.A.C.A.No.870 of 2009`** daughters were already brought on record. The learned counsel seeks for apportionment of the amount in favour of the additional appellants. This Court directs the Tribunal to apportion the additional compensation awarded accordingly at the time of disbursal. Sd/- ## **MARY JOSEPH** **JUDGE** MJL